City of San Antonio, Texas

Whether a non-profit organization, which intends to
spend money for lobbying activities, must register as a lobbyist;

and

Whether persons acting on behalf of the organization
must also register;

and

If a requirement for registration exists, when must
the registration take place?

A
law firm represents a not-for-profit organization, which may, from time to
time, have one, or more of its members engage in lobbying activities to further
the interest of the organization. The organization, at the direction of the
Board of Directors, may expend money for lobbying activities.

The organization seeks an advisory opinion on whether it
must register as a lobbyist if it expends monies in connection with lobbying
activities; and whether the persons acting on behalf of the organization must
also register, even if these agents will not be expending any of their own
personal money. Also, the organization requests direction regarding when the
organization and/or persons acting on behalf of the organization are required
to register, i.e. must the registration occur before any money is expended?

Under
Part E, Section 1(g) and (h) of the Ethics Code, a “lobbyist” is a person who

1)
communicates, either verbally or in writing

2) with a city official

3) in an effort to influence or
persuade the official

4) to
favor or oppose, recommend or not recommend, vote for or against, or take or
refrain from taking action on any municipal question.

Under Part E, Section 2, except as provided by Section 3 of
Part E (Exceptions), a person who engages in lobbying must register with the
City Clerk if:

(a) with
respect to any client, the person engages in lobbying activities for
compensation; or

(b) the person expends monies for
lobbying activities.

The terms
“compensation” and “expenditure” are defined in Section 1 of Part E
(Definitions).

Compensation
means money or any other thing of value that is received, or is to be received,
in return for or in connection with lobbying services rendered, or to be
rendered, including reimbursement of expenses incurred in lobbying.
“Compensation” for professional services that do not primarily require contact
or advocacy with public officials does not constitute “compensation in
connection with lobbying services” for purposes of this section, if contact
with public officials is incidental to the primary purpose of the employment.

Expenditure means a payment,
distribution, loan, advance, reimbursement, deposit, or gift of money or
anything of value, including a contract, promise, or agreement to make an
expenditure, regardless of whether such contract, promise, or agreement is
legally enforceable.

The Ethics Code provides for some
exceptions to the lobbyist registration requirements. First, it excepts
mobilizing entities and not-for-profit organization from registration for
certain types of activities:

A person
whose only lobbying activity is to encourage or solicit the members, employees,
or owners (including shareholders) of an entity by whom the person is
compensated to communicate directly with one or more city officials to
influence municipal questions. This exception is intended to apply to neighborhood
associations and not-for-profit organizations. Part E, Section 3(b).

Further, the Ethics Code exempts
an organization from registration if its expenditure is to hire a lobbyist to
advocate on its behalf:

A client
who would only be required to register under Section 3 because of any
expenditure to compensate a registrant, other than an employee, to lobby on a
municipal question of interest to a client, provided that the compensated
registrant files a registration statement or activity report for the period in
question. Part E, Section 3(f).

Must the organization
register?

If the
organization expends money for lobbying activity, then Part E, Section 3 would
require the organization to register with the city as a lobbyist, unless the
expenditure is related only to efforts to mobilize its constituency or
membership to communicate with city officials, or the expenditure is for
payment to a non-employee to lobby on behalf of the organization with city
officials.

It should
also be noted that if the expenditures are made to communicate with officials
during a meeting open to the public under the Texas Open Meetings Act, Texas
Government Code 551, such contacts would not constitute “lobbying” for purposes
of the registration requirement. Ethics Code Part E, Section 1(h)(5)

Must the
organization’s member register?

If a
member of the organization either engages in lobbying activities (as described
in Section 1(h) of Part E) for compensation or expends funds for lobbying, the
individual is required to register as a lobbyist, unless an exception applies
under Part E, Section 3. Whether the individual receives compensation for
lobbying (if any lobbying activity is undertaken) must be determined in
accordance with Section 2 of Part E. Again, as with the organization, if the
member’s only activity is to mobilize the organization’s constituency or
membership to individually contact public officials, that member would not be
required to register. Also, if the member is compensated, but his only
communications with public officials occur at meetings open to the public under
the Open Meetings Act, he would not be required to register.

Further, if the individual member receives no compensation (acts as a
volunteer) and if the individual expends no funds for lobbying, there is no
requirement for the individual member to register as a lobbyist.

If
registration is required, when is the registration deadline?

An initial registration form must be filed by a person or entity
required to register under Section 2 of Part E (Persons Required to Register as
Lobbyists) within 90 days after the start of lobbying activity. However, in no
event shall a registrant knowingly fail to register, or knowingly fail to
disclose such registration to relevant city officials, prior to official city
action relating to the subject matter of the lobbying activity. Ethics Code,
Part E, Section 4(b).